State v. Shipman

• Decision Date: 13 July 1978
• Docket Number: No. 10799,10799
• Citation: 568 S.W.2d 947
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald Patrick SHIPMAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 947

568 S.W.2d 947

STATE of Missouri, Plaintiff-Respondent, v. Donald Patrick SHIPMAN, Defendant-Appellant.

No. 10799.

Missouri Court of Appeals, Springfield District.

July 13, 1978.

John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.

Before BILLINGS, C. J., and HOGAN and TITUS, JJ.

TITUS, Judge.

Tried as a second offender and found guilty by a jury of attempted burglary (Count I) and possession of burglary tools (Count II), defendant was court-sentenced to concurrent prison terms of five years on Count I and ten years on Count II.

Near 2:30 a.m. on April 16, 1977, a Hornersville policeman found and arrested 23-year-old defendant as he was prying on the alley door of a grocery store. Defendant, a self-proclaimed "drug addict," admitted the crime but testified he thought he was trying to get into the next-door drugstore "to steal drugs."

Defendant's mother, a registered nurse, testified, in substance: When defendant was in high school he was "a bright young man" with "a relatively high I.Q." Defendant "related well to his peers, got along well with his brothers and sisters and was relatively obedient to his parents." However, when defendant was in the army in 1972 his "demeanor" changed. He went AWOL, looked "rather dirty . . . was nervous (and) very unresponsive to his parents." Subsequent to receiving an undesirable discharge from the army, defendant's mother discovered he was using "drugs or narcotics." He could not keep a job, was convicted of a drug-related check charge and spent about 18 months in the penitentiary. Before going to prison, defendant would at times be "elusive and articulate. Other times he would be withdrawn and to himself, and he would maybe sit down and nod off to sleep and when I would try to awaken him, he would shrug me off. When I tried to discuss this with (him) he would be very abusive with me." Defendant's condition was "worse" after he left the penitentiary and this continued up until three days before the crimes were committed which was the last time defendant's mother saw him prior to April 16, 1977.

The core of the appeal concerns three questions asked of defendant's mother after counsel had elicited from her on direct examination the foregoing background information. Sustention of the state's objection to each question and the refusal of defendant's offers thereto, constitute the principal claims of trial court errors by defendant. The questions were: (1) " . . . based upon the association that you had with your own son and the observations that you have described over some five year period, do you have an opinion not only as a qualified nurse but as a mother as to whether on April 16th of '77, when he committed these acts, that he was of sound mind?" (2) "Do you have an opinion, based upon your observations and the experience you had with (defendant) over these periods of years, both as his mother and as a nurse, whether on April 16, 1977, in your lay opinion, he could be responsible for his acts?" (3) " . . . do you have any opinion, based upon the things we've gone through as to whether (defendant), on April 16th, knew right from wrong?"

Albeit § 552.010 ¹ is entitled "Definition of mental disease or defect," it does not, in fact, define the terms more than to state that " 'mental disease or defect' include congenital and traumatic mental conditions as well as disease." Also without specificity, MAI-CR 2.32 instructs that "The phrase 'mental disease or defect', . . . , means any mental abnormality, regardless of its medical label, origin or source." Without much more than embraced in the direct definition of terms, § 552.010 and MAI-CR 2.32 additionally refine and charge that the terms " 'mental disease or defect' do not include . . . drug abuse without psychosis." Thus, while the statute seemingly adopts a liberalized view of mental illness (See, "An Analysis of the Law," Richardson, Reardon and Simeone, Vol. 19 No. 12, Journal of the Missouri Bar, p. 677 etc.), it retains the pre-statute conservatism when dealing with drug abuse because it makes psychosis the determinative factor in deciding whether drug abuse is a defense vel non. Boyer v. State, 527 S.W.2d 432, 437(8) (Mo.App.1975).

An acute or temporary state of drug intoxication is not the equivalent of a drug addiction or abuse which is chronic. Cf. State v. Street,498 S.W.2d 523, 524(2, 3) (Mo.1973). But although the condition suffered be chronic, it does not rise to a recognizable defense under the law unless it has resulted in psychosis. Consequently, the basic issue in this case concerns defendant's legal responsibility for his undisputed criminal act, and, assuming submissibility of the issue, the matter which the jury would have had to determine was whether the defendant, at the time of the crime and as the result of drug-induced psychosis, did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law. § 552.030; MAI-CR 2.33; Franklin v. State, 455 S.W.2d 479, 484(5) (Mo.1970); Boyer v. State, supra, 527 S.W.2d at 436(3).

" Psychosis" and "insanity" are synonymous (Webster's Third New International Dictionary of the English Language, Unabridged, pp. 1168 and 1833; Webster's New World Dictionary of the American Language, Col. ed., pp. 755 and 1176; 73 C.J.S. Psychosis, p. 274), and "insanity" is to be equated to the incapacity of distinguishing right from wrong. State v. Crayton, 354 S.W.2d 834, 836 (Mo.1962); 44 C.J.S. Insane Persons § 2(2), p. 11. ² The right-wrong insanity test attributed to M'Naghten Case, 1 C. & K. 130, 10 CL. & F. 200, 8 Eng.Rep. 718 (1843), has been applied to defenses of drug addiction in like manner as applied to insanity resulting from other causes. State v. Crayton, supra; 73 A.L.R.3d 16, Drug Addiction as Defense, § 13, p. 71 etc. While it must be recognized that drug addiction without psychosis is not a defense (§ 552.010; United States v. Freeman, 357 F.2d 606, 625(8-11) (2d Cir. 1966)), a mental disease or defect which results in insanity or the inability to distinguish right from wrong is still a defense although the disease or defect had its origin and was nurtured into legal irresponsibility through drug abuse or addiction. Stated differently: If a psychosis exists by reason of defendant's inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law (§ 552.030), how or why the mental disease or defect arose should be of no moment. See, State v. Morris, 263 Mo. 339, 348, 172 S.W. 603, 605(2) (1915); State v. Porter, 213 Mo. 43, 57, 111 S.W. 529, 531-532, 127 Am.St.R. 589 (1908); State v. Riley, 100 Mo. 493, 499, 13 S.W. 1063, 1064 (1890); 21 Am.Jur.2d, Criminal Law, § 43, p. 128.

While we eschew the unnecessary chore in this case of deciding the propriety of counsel's first two questions to defendant's mother seeking her opinion as to whether defendant "was of sound mind" or "could be responsible for his acts," there is no disputing that a lay witness, employing the M'Naghten right-wrong test, may express an opinion as to the insanity of a human being provided he first testifies as to the unusual, abnormal or bizarre conduct observed so that it may be determined whether the abnormalities shown justify the opinion. State v. Edmonds, 468 S.W.2d 685, 688(8) (Mo.App.1971); United States v. Milne, 487 F.2d 1232, 1235(9) (5th Cir. 1973); VII Wigmore on Evidence, 3rd ed., § 1938, p. 36; 31 Am.Jur.2d, Expert and Opinion Evidence, § 88, pp. 604-606. "It is generally conceded that no helpful rule can be formulated declaring what minimum knowledge will qualify a witness to express an opinion on the insanity of a person; and that the determination of that question in each case must be confided largely to the discretion of the trial court, with which appellate courts do not interfere unless the ruling was clearly erroneous. . . . 'The truth is that the test should be left in the hands of the trial judge. Neither its exact phrasing nor its application in a given instance, should be made to occupy the time of the highest Courts.' " State v. Jackson, 346 Mo. 474, 481, 142 S.W.2d 45, 49(5, 6) (1940); 3 Wigmore on Evidence, Chadbourn Revision, § 689(2), p. 12.

The testimony of defendant's mother which preceded the questions seeking her opinions, evidenced, at most, a recasting of defendant's unconventional conduct when he was under the influence of drugs. It is difficult to comprehend how such an accounting would warrant a lay conclusion that defendant's drug abuse had resulted in psychosis or in the inability to distinguish right from wrong. ³ Ergo, we conclude the trial court did not abuse its discretion in excluding the mother's opinion testimony. Moreover, if counsel, because the mother was a nurse, was endeavoring to elicit her opinions as an expert, rather than as a nonexpert, we perceive no abuse of discretion on the part of the court. The mother's training and experience in dealing with mental diseases were admittedly limited and she did not lay claim to any expertise in diagnosing or determining mental capacity for the purpose of criminal responsibility. State v. Williams, 515 S.W.2d 463, 466(3 and 4) (Mo.1974).

To augment the foregoing, there is another reason why we may not short the trial court for refusing to permit the defendant's mother to express her at-time-of- trial opinions. A lay witness may give an opinion regarding the sanity or insanity of a defendant If it be an opinion formed at the time the witness observed the facts which induced the opinion. "It is the impression made upon his mind at the time that is important. An opinion conceived at a later date is not the impression received at the time,...